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2013 (9) TMI 454 - AT - Central ExciseClandestine removal of goods - evidence - octroi receipt - difference of opinion - majority order - Held that - Revenue discharged its burden of proof on the basis of Section 14 evidence recorded from Sri Saravjeet Singh who was an inextricable link between the appellant and the impugned goods transported by the use of the impugned vehicle as a means of transport. Shri Saravjeet Singh also admittedly stated that he has deposited Octroi at the respective Octroi check gate on the ingots of the appellant transported. Preponderance of probability was in favour of Revenue for which appellants failed to gain favour of law. Evidence of Madan Mohan Saini recorded by Revenue confirmed use of the impugned vehicle (PCR-4785) for transportation of ingots sold to local buyers in Jallandhar by corroborated testimony of Sri Saravjeet Singh. He also confirmed that Shri Saravjeet Singh was driver of the impugned vehicle and that remained un-refuted. Octroi receipts also established name of Shri Saravjeet Singh appearing therein as payer thereof. All these evidence lent credence to the case of Revenue without being demolished by Appellant. Discovery of parallel invoice as recorded by learned Technical Member in Para 16 of the referral order remained uncontroverted which was also an allegation in para 15 of the show cause notice dated 1-7-2007. Modus operandi of the appellant became questionable. It can be said that sufficiency relevancy and credibility of evidence available on record proved charge of clandestine removal of impugned goods without payment of duty for which both appeals fail and learned Technical Member has rightly held that the impugned order required no interference. - Decided against the assessee.
Issues Involved:
1. Clandestine removal of goods without payment of duty. 2. Reliability of octroi receipts and statements of ex-employees. 3. Proper investigation and corroborative evidence. 4. Imposition of duty, interest, and penalties. Issue-wise Detailed Analysis: 1. Clandestine Removal of Goods Without Payment of Duty: The appellants were accused of clandestinely removing 891.90 MTs of Ingots/Billets without issuing Central Excise invoices, based on octroi receipts and statements from ex-employees. The adjudicating authority confirmed a duty demand of Rs. 6,96,198/- along with interest and penalties, while dropping a demand of Rs. 9,31,845/- for goods not manufactured by the appellants. The appellants contended that the case was based solely on octroi receipts and uncorroborated statements, denying ownership of the truck and any clandestine removal. 2. Reliability of Octroi Receipts and Statements of Ex-Employees: The department's case relied heavily on octroi receipts and statements from ex-employees, Shri Sarabjeet Singh and Shri M.M. Saini. The appellants argued that the octroi receipts mentioned various goods not manufactured by them, and the statements were given four years after the alleged period without corroborative evidence. The department maintained that the statements were credible and the octroi receipts, being statutory documents, were reliable. 3. Proper Investigation and Corroborative Evidence: The appellants argued that the department failed to investigate crucial aspects such as the buyers, production capacity, procurement of raw materials, and electricity consumption. They contended that no corroborative evidence was provided to support the allegations of clandestine removal. The department did not refute these points convincingly, leading to questions about the thoroughness of the investigation. 4. Imposition of Duty, Interest, and Penalties: The adjudicating authority imposed duty, interest, and penalties based on the findings. The appellants challenged these impositions, arguing that the case lacked substantial evidence. The judicial member found the investigation inadequate and the evidence insufficient to sustain the charges, while the technical member upheld the impositions, citing credible statements and partial confirmation of the duty demand. Separate Judgments: Judicial Member's Judgment: The judicial member concluded that the evidence presented, including octroi receipts and statements, was not sufficient to prove clandestine removal. The investigation was deemed incomplete, lacking corroborative evidence such as statements from buyers and transporters, and details on raw material procurement and electricity consumption. The judicial member set aside the impugned order, allowing the appeals with consequential relief. Technical Member's Judgment: The technical member disagreed, finding the statements of Shri Sarabjeet Singh and Shri M.M. Saini credible. The technical member noted that the octroi receipts and statements indicated the use of truck No. PCR-4785 for transporting ingots, and the appellants' failure to refute this evidence. The technical member upheld the imposition of duty, interest, and penalties, dismissing the appeals. Majority Order: The third member, D.N. Panda, supported the technical member's view, emphasizing the credibility of the evidence and the appellants' failure to disprove the allegations. The majority order concluded that the impugned order required no interference, and both appeals were dismissed. The registry was directed to place the record before the appropriate bench to record the majority order. Conclusion: The majority decision upheld the charges of clandestine removal and the associated duty, interest, and penalties, dismissing the appeals. The judicial member's dissent highlighted the need for thorough investigation and corroborative evidence, but the majority found the existing evidence sufficient to sustain the charges.
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